Mistaken Goal: Where Student Affairs & Technology Meet

Some quick updates and links to discussions and news related to online copyright infringement:

• Last week, the RIAA announced that it was beginning a new program where it would send alleged offenders a notice before suing them to offer them an early option to settle. This offer is sent to the university or college with the request to forward it on to the alleged offender. Cornell has sent a letter to its students trying to help them understand exactly what is going, how these new letters differ from DMCA takedown notices and other letters, and how Cornell is and is not responding. Some institutions are refusing to send these new letters on their students but others are complying with the RIAA’s request. Discussions are being held at and between many institutions concerning institutions’ legal and ethical obligations with respect to these pre-litigation letters. Should institutions pass on these letter to students in an effort to make themselves neutral? Do institutions have a legal obligation to pass on these letters? Must institutions retain logs as requested by the RIAA? It’s obviously a complicated issue with many ethical, legal, and financial facets.
• Discussion continues about the role of copyright in a digital era. We may not all agree with UC Berkeley’s Larry Downes’ comparison with the Information Revolution to the Industrial Revolution and his assertion that “[Today's] bloody fights are not over natural resources and access to emerging markets but over use and ownership of ideas.” But I do agree with his general premise and I further assert that in this particular instance higher education is being caught in an ugly squeeze between wealthy copyright holders struggling to maintain their grip on…well, anything they can continue to grip (income, market share, cultural influence, political influence, etc.) and a legal system still struggling to come to terms with a new economy that differs significantly from the old (and don’t think the old economy is going away – no, we have to deal with both of them at the same time). Let’s see what our friends in the House Subcommittee on Courts, the Internet, and Intellectual Property (yes, the same subcommittee that hold the campus piracy hearings) have to say in an upcoming hearing focused on reforming part of the Copyright Act “for the Digital Age.” They’ll be examining Section 115, the section that covers compulsory licensing of music, a task very similar to one in which Europe is engaged.
• In preparing for the NASPA/ACPA 2007 Joint Meeting and the activities planned for and by the NASPA Technology Knowledge Community, I skimmed the Principles of Good Practice for Student Affairs. This is a relatively simple list of practices modeled after the original 1987 Seven Principles for Good Practice in Undergraduate Education. Although written before the coming-of-age of Napster and subsequent challenges related to online copyright infringement and reform, I am struck by how the opening sentences of the Introduction describe our current situation: “Today’s context for higher education presents student affairs with many challenges. Among these are new technologies, changing student demographics, demands for greater accountability, concern about the increasing cost of higher education, and criticism of the moral and ethical climate on campuses.”
  1. New technologies: This is a gimme.
  2. Changing student demographics: As noted by Cheryl Elzy in testimony before Congress, “The scope of the problem [is] national. It’s worldwide. It’s bigger than we’d first imagined and a significant problem, we think, for higher education. Frankly it’s a problem at all levels of education, including K-12.” The issue is not one of students learning this behavior in colleges and universities. It’s learned behavior they bring with them. While this is not a shift in demographics as some may think of it (race, ethnicity, SES, etc.), I assert that the increase in the number of students comfortable and familiar with technology and thus possessing skills and expectations is a demographic shift. There are interesting questions to ask about how the other more traditional demographic measures and characteristics interact with these emerging characteristics but let’s set those aside for now (but don’t forget those questions! They’re fascinating and important and we’re figuring out the answers.)
  3. Demands for greater accountability: At the heart of the legislative pressure for institutions to “do something” about this issue is a sense that institutions must be held accountable for what their students are doing with public and educational resources (open question: is there a discernible difference in the pressure being placed on or the reaction of private institutions?). Rightly or wrongly, we’re being held accountable for our perceived inaction and lack of concern and there is a push for us to be held accountable. Even when we (correctly) argue that enforcing someone else’s copyright is not our legal responsibility, law makers reply that they can change the law to make it our legal responsibility.
  4. Concern about the increasing cost of higher education: Interestingly, this concern is being felt most by institutions and not legislators. It’s an argument we correctly repeat when pressed on this issue: the solutions offered are very expensive. Do we continue to worry about the increasing costs of higher education at the same time we demand institutions purchase costly products and services to enforce someone else’s copyright and subsidize students’ desire for free music and movies? There’s a conflict there and a disconnect that I’m not sure has been fully explored.
  5. Criticism of the moral and ethical climate on campuses: Even many who do not believe it is not the legal responsibility of colleges and universities to enforce the copyrights of others believe that we have a moral and ethical obligation to dissuade students from violating copyright.   I’m not sure there is much room for argument as this is a reasonable belief consistent with the educational mission of most institutions.  However, there is room for discussion in how far and in what manner institutions should press this issue as the morality and ethics are certainly not black-and-white, particularly when shady groups like the RIAA become involved.

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The written testimony and video of today’s Congressional “An Update – Piracy on University Networks” hearing have been posted online. The video is pretty low quality Real video but it’s there and I appreciate the quick response on the part of the Congressional staffers responsible. The witnesses (with links to their written testimonies) were:

• Jim Davis, Associate Vice Chancellor for Information Technology of the University of California Los Angeles
• Gregory J. Marchwinski, President and Chief Executive Officer of Red Lambda
• Cary H. Sherman, President of the Recording Industry Association of America (RIAA)
• John C. Vaughn, Executive Vice President of the Association of American Universities

The general tone of the hearing was one of disappointment on the part of Congress. They are unhappy with our perceived lack of progress addressing this issue (Keller (R-FL): “The hammer’s comin’.”). In particular, they are unhappy with the lack of progress of the Joint Committee of the Higher Education and Entertainment Communities.

This hearing largely focused on the available technologies to mitigate copyright infringement on college and university campuses. The points made and questions asked by the congresspersons revealed several fundamental misunderstandings of the technology and related issues. Congress was emphatic in their belief that not only should we be doing something (Coble (R-NC): “The ability to do something is not commensurate with the right to do it. And those who have the ability to prevent such behavior have a moral, ethical, and – I believe – the legal obligation to do so.”) but we are not doing enough.

Representative Berman (D-CA), chairperson of the subcommittee holding the hearing, opened the hearing by stating: “There is little debate about piracy’s devastating impact on the economy.” Really? There’s certainly debate about the impact of copyright infringement, particularly the nature and amount of the impact. We don’t all accept the biased word and calculations of the copyright holders but we shouldn’t be surprised that Hollywood’s representative (Berman represents California’s 28th district) takes such a strong stand on this issue. But I think everyone can agree that lots of people are breaking the law and it’s having a negative financial impact on many copyright holders even if we disagree on the particulars.

The topic that seemed to confuse the congresspersons the most is a belief that there really is a magic bullet technology that can detect copyright infringement on a network while respecting privacy and preserving academic freedom. Several members even asked about watermarking technology and seemed to believe that technology is a promising solution. I don’t know why none of the witnesses explained that this is a problem that technology can not solve. In a most basic sense, copyright law is too nuanced for a computer program to tell the difference between authorized and unauthorized distribution. Between legitimate purchases, time and space shifting, and fair use, computers don’t stand a chance of being able to accurately tell the difference between legal and illegal file transfers. Further, as mentioned at least once by a witness, this is an arms race we can’t win. Once files are encrypted, packet inspection becomes impossible. We can rely on other techniques but it’s an arms race and there are a whole lot more smart students than there are talented network admins. One of the congresspersons even read the sales literature of some new network technology that sounded like magic and he appeared to but it hook, line, and sinker.

One issue raised a few times is a report on file sharing on college campuses by the Government Accountability Office (GAO). The GAO has not publicly released the results of their survey but apparently only half of the institutions contacted participated. Respondents were not promised confidentiality and results were not promised to be reported in the aggregate. In other words, individual institution’ responses were to be reported and linked to the respondents. Not only were congresspersons unhappy with this response rate, they also asked if institutions would respond to another survey (“with conditions” i.e. perhaps promise confidentiality this time).

Some of the proposals floated by the congresspersons in this hearing are quite scary. I don’t know how many of them were idle speculation intended to scare the witnesses and higher education. Berman said that the current law isn’t giving institutions enough incentive to act so he might have to investigate changing the exemptions given to universities under copyright law and add conditions to those exemptions. Similarly, Schiff (D-CA) said that congress could narrow safe harbor by requiring best effort or technology designed to address this problem since some institutions are not taking adequate action. He further asked witnesses what they thought about empowering local law enforcement to act on copyright issue. Jackson Lee (R-TX) agreed with Sherman that institutions haven’t done enough and said that if institutions were to charge students a fee for music it might be a “stop-gap” to legislative fixes.

Several congresspersons emphasized their belief that colleges and universities have a duty to teach citizenship and ethics to undergraduate students. Rep. Sherman said in his opening statement that “Business ethics education starts with undergraduate education. I believe that the leaders of the WorldCom and Enrons of the future will be educated at those schools that deliberately facilitate the theft of intellectual property.” Feeney (R-FL) began his questioning by noting that citizenship and character-building are an important part of college; he then compared institutions that do not enforce their policies with China and their lack enforcement of intellectual property laws (which is a bit extreme but the point about institutions failing to enforce their own policies is a good one and was repeated a few times by different people).

Sherman was asked how the RIAA decides to sue a student and if warnings are issued to the student and university beforehand. A very similar question was asked on Wednesday during the copyright-related EDUCAUSE Live! presentation. Unfortunately, Sherman danced around the topic and failed to provide an answer beyond “we send lots of DMCA takedown notices.” However, another point Sherman visited a few times was an excellent one. He once presented it by saying: “The transition from physical to digital has completely altered the way we live our lives. Shouldn’t these changes be reflected in schools’ message to students? Colleges are charged with educating our citizens. Isn’t it essential they prepare them to use appropriately the technology that will fill their lives?” He’s right – we should be doing more to recognize the shifts taking place and addressing them.

Concrete actions or requests described by Berman throughout the hearing included (a) a request that the MPAA release a list similar to the “Top 25″ list recently released by the RIAA, (b) a request that the RIAA (and presumably the MPAA) release an updated list in 6 months to see if the list has changed, and (c) another hearing in 6 months to gauge progress, particularly related to the forthcoming recommendations by the Joint Committee and the subsequent adoption of those recommendations. As already noted, several congresspersons indicated a strong interest in forcing higher education to “deal with” this issue and do so quickly. Their patience appears to be running out.

Update: The Chronicle’s technology blog has a similar article about this hearing.

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The House Subcommittee on Courts, the Internet, and Intellectual Property will be holding a hearing later this week entitled An Update – Piracy on University Networks.” This subcommittee is a subcommittee of the House Committee on the Judiciary and is chaired by Rep. Howard Berman (D-CA). As this is the first such hearing under Democratic leadership, it will be interesting to see how it differs from previous hearings. I’m not sure how much things will really change as Berman is very beholden to his Hollywood constituents and in favor of expanding strict controls on copyright and copyrighted materials. However, Rick Boucher (D-VA) is also on the subcommittee and he is one of the strongest proponents of copyright reform in the House so that may provide some balance.

The Senate Committee on Health, Education, Labor and Pensions will also hold a hearing on “Strengthening American Competitiveness for the 21st Century” on Wednesday. It’s unclear if this hearing will feature any technology-specific issues but they have held at least one hearing specifically related to higher education. The House Subcommittee on 21st Century Competitiveness held at least one hearing last year specifically addressing the issue of online copyright infringement on college and university campuses; it remains to be seen if their counterparts in the Senate follow suit.

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Lest anyone think I am sleeping through this: Yes, I’ve seen the letter that ACE sent to college and university presidents regarding online copyright infringement. Both of the major American higher ed news services have posted stories and there is continuing discussion in many places, online and offline. We knew this was coming and we would have been fools to not expect this to new offer to be extended to colleges and universities. I have little new to add to the conversation as my reaction is probably typical of many who share the same opinion. We continue to struggle with the pressures of role modeling ethical behavior for our students, protecting our networks and bandwidth, and coming to grips with the changing face of intellectual property and how people and corporations relate to and use those properties.

In related news, next week’s EDUCAUSE Live! event (free online one-hour educational event sponsored by EDUCAUSE) will be presented by some folks involved in Illinois State University’s Digitial Citizen Project. To the best of my knowledge, the Digital Citizen Project is the most comprehensive look at the role of colleges and universities in addressing this challenge; the array of characters involved in their effort is diverse and impressive. I’ve also been very impressed with their publications, particularly their testimony before a congressional subcommittee last year. The event is free and EDUCAUSE always does a great job with their Live! events so I encourage everyone interested in this issue to register and attend.

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